14. Additional Rights of the Copyright Owner
Learning Objectives: Unit 14
Upon completion of this unit, you should be able to:
- Recall the statutory rights of the copyright owner.
- Explain the meaning of “display the copyrighted work publicly” and “perform the copyrighted work publicly”.
- Analyze whether a hypothetical scenario infringes on the additional statutory rights of a copyright owner
- Explain the concept of derivative works.
Although the primary right of the copyright holder is the exclusive right to reproduce the work, there are other activities that do not require fixation in a tangible medium that can also constitute copyright infringement. For example, depending on the type of work, the copyright owner may have the exclusive right to perform or display the work publicly. Copyright owners also have the right to prepare derivative works and, in some situations, creators may possess additional “moral” rights in the work.
As you read this section’s statutes, ask yourself the following questions:
- When you watch a YouTube video, are you “performing” that work for purposes of § 106?
- If I play Roy Orbison’s Oh, Pretty Woman on my phone in class 9, will I be engaging in a public performance?
- If I were to show a movie to the entire population of the law school, but allow only one person at a time to watch it, would I be engaged in a public performance?
The final right of § 106 that we will discuss is the right to prepare derivative works. This right is somewhat an odd right given that the first right, the right to reproduce the copyrighted work, extends to nonliteral copying. Doesn’t a derivative work, by its very nature, involve a fairly substantial degree of nonliteral copying? Pickett v. Prince may shed some light on the reasons for a separate right to prepare derivative works—and on the limits of such a right.
In addition to the set of rights provided in § 106, there are an additional set of rights in § 106A that apply to a limited subset of copyrightable works. These are referred to as “moral rights,” and are more easily understood under natural rights and personhood theories than in purely economic terms. Because these rights are mostly limited to a specific class of works, we do not address them in this class. However, you may want to read through § 106A (note that it is not 106(a)!) to familiarize yourself with these rights.
17 U.S. Code § 101. Definitions (2010)
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A “derivative work” is a work based upon one or more preexisting works such as a translation, musical arrangement, dramatization, fictionalization, motion picture, version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which as a whole, represent an original work of authorship, is a “derivative work”.
17 U.S. Code § 103. Subject matter of copyright: Compilations and derivative works (1976)
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
17 U.S. Code § 106A. Rights of certain authors to attribution and integrity (1990)
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
1. shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
2. shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
3. subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right…
